Citation Nr: 18112227 Decision Date: 06/19/18 Archive Date: 06/19/18 DOCKET NO. 15-03 510 DATE: June 19, 2018 ORDER Service connection for prostate cancer. Service connection for ischemic heart disease. Service connection for diabetes mellitus type II. FINDINGS OF FACT 1. The Veteran served at the Korat Royal Thai Air Force Base in Thailand during the Vietnam War Era and, based upon his regular duties and living conditions while there, is presumed to have been exposed to herbicide agents. 2. The Veteran has a current diagnosis of prostate cancer. 3. The Veteran has a current diagnosis of ischemic heart disease. 4. The Veteran has a current diagnosis of diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). 2. The criteria for service connection for ischemic heart disease, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). 3. The criteria for service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to June 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision. The Board is required to determine its jurisdiction over the Veteran’s service connection claim for prostate cancer by addressing in the first instance whether the Veteran is reopening a finally adjudicated claim or is bringing a new claim based upon a change of law or Department of Veterans Affairs issue. Woehlaert v. Nicholson, 21 Vet. App. 456, 460 (2007); compare 38 C.F.R. § 3.114 with 38 C.F.R. § 3.156; see Spencer v. Brown, 4 Vet. App. 283 (1993) (explaining that a change in law or regulation creates a new claim not reopening of an old one); Ashford v. Brown, 10 Vet. App. 120 (1997) (distinguishing the facts from those in Spencer because the administrative protocol did not create a new basis of liberalization of entitlement). Here, service connection for prostate cancer was denied in a March 2009 rating decision, which became final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 19.32, 20.200, 20.302, 20.1103 (2008). In May 2010, VA liberalized presumptive service connection for diseases associated with exposure to certain herbicide agents to include certain veterans who served in Thailand. U.S. Dep’t of Veterans Aff., Compensation and Pension Service Bulletin 3 (May 2010). The Veteran brought his current claim for service connection for prostate cancer in June 2011 and, accordingly, the Board will address the merits of the Veteran’s claim as a new claim pursuant to 38 C.F.R. § 3.114 and Spencer, rather than on the basis of new and material evidence under 38 C.F.R. § 3.156(a). The Board notes that the Veteran and his attorney presented additional evidence that has been associated with the Veteran’s claims file after he filed his substantive appeal, VA Form 9, in February 2015. Because the appeal was perfected after February 2, 2013, waiver of Agency of Original Jurisdiction review is presumed. 38 U.S.C. § 7105(e); VA Fast Letter 14-02 (May 2, 2014). In addition, the Veteran’s attorney also provided some written waivers . Service Connection The Veteran essentially contends that his prostate cancer, ischemic heart disease, and diabetes mellitus type II are related to his service in Thailand during the Vietnam War Era due to exposure to herbicide agents. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). When there is evidence of in-service exposure to herbicide agents, including Agent Orange, during the Vietnam War Era and the Veteran manifests certain enumerated diseases to a degree of 10 percent or more at any time after service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during service. 38 U.S.C. §§1101, 1112, 1116; 38 C.F.R. §§ 3.303(b), 3.307(a)(6), 3.309(e); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Prostate cancer, ischemic heart disease, and diabetes mellitus type II are such enumerated diseases. 38 C.F.R. § 3.309(e). Special consideration of herbicide exposure on a facts found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam War Era, allowing for presumptive service connection for the diseases associated with herbicide exposure. Exposure to herbicide agents should be acknowledged on a facts found or direct basis when a U.S. Air Force veteran served on one of the Thailand air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence. Small Army installations in Thailand may also have used perimeter herbicides in the same manner as the air bases and are to be given similar treatment under the presumption for exposure to herbicide agents. U.S. Dep’t of Veterans Aff., Compensation and Pension Service Bulletin 3 (May 2010). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board acknowledges the Veteran’s citations to prior Board decisions, 06-23 292, 08-09 393, and 14-24 305, and a non-precedential remand by the United States Court of Appeals for Veterans Claims, Parseeya-Picchione v. McDonald, 28 Vet. App. 171 (2016). While they may be informative, the Board is not bound by these decisions since they do not address this particular Veteran’s case. See 38 C.F.R. § 20.1303; McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). The question for the Board is whether the Veteran was presumptively or factually exposed to herbicide agents while serving at a U.S. Air Force base in Thailand during the Vietnam War Era such that service connection for his claimed disabilities would be warranted. The Board finds that the preponderance of the evidence establishes that service connection for his claimed disabilities is warranted. 1. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents. 3. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents. The Veteran’s VA medical records show a diagnosis of adenocarcinoma of the prostate in July 2008. His records show a June 2011 discharge summary with diagnoses of congestive heart failure, coronary artery disease status post myocardial infarction/angioplasty in 2004, and ischemic cardiomyopathy with an ejection fraction of 35 percent. Additionally, this discharge summary shows a diagnosis of new onset diabetes mellitus type II and the prescription of insulin. Accordingly, the first Holton element, current disability, is met as to each of the Veteran’s claimed disabilities. The Veteran’s military personnel records show that he served in the United States Air Force, and in November 1966, he acted as an assistant crew chief assigned to the 469 Tactical Fighter Squadron stationed at Korat RTAFB (Royal Thai Air Force Base), Thailand (PACAF). His Form DD-214 shows that his military occupational specialty (MOS) was 43151C Aircraft Maintenance Specialist. His military personnel records include a performance review for the period June 1966 to June 1967 that was completed while he was stationed at Korat RTAFB. His duty was assistant crew chief, which included performing pre-flight and post-flight inspections of aircraft; servicing aircraft with fuel, oil, water, and liquid oxygen; launching and recovering aircraft; performing various types of maintenance on aircraft; and monitoring and maintaining aircraft maintenance forms. Accordingly, the Board finds that the Veteran served at Korat in Thailand during the Vietnam War Era. In January 2012, the Veteran presented a statement in support of claim, stating that in November 1966 he boarded an airplane headed for his next duty assignment with the 388th Tactical Fighter Wing in Korat, Thailand. He stated that the flight made refueling stops in Anchorage, Alaska; Yokota, Japan; Clark Air Force Base, Philippines; Tan Son Nut, Saigon, Vietnam; and Bangkok, Thailand. He stated that he spent the night in Bangkok before boarding another aircraft to complete the trip, making several stops along the way. The Board notes that the Veteran has not contended that he had boots on ground by deplaning in Vietnam during this trip, and there is no evidence of record suggesting that he did. The Veteran stated that he was assigned to the 469th Tactical Fighter Squadron as a flight line crew chief on Republic Aircraft’s F-105 and that his MOS was F43151-C. He stated that he was assigned living quarters in the 388th Tactical Fighter Wing section. Referring to Map 2, which he enclosed, he stated that his hooch was inside the 500-meter drift spray area. He stated that he also played on the 469th softball team, indicating the location in proximity to the perimeter of the softball field and physical training and recreation area, on the map. The Veteran’s service treatment records show that he was treated numerous times at the 388 TAC dispensary at Korat RTAFB for tinea versicolor, which began after coming into contact with the swimming pool. The Veteran stated that he frequented the 31st Field Hospital at Camp Friendly to visit wounded friends. He stated that he had to use the perimeter road to make the trip. He stated that he also visited the city of Korat, frequently visiting temples and restaurants. He stated that he “passed through the spray zone with regularity.” The Veteran explained that his MOS required him to do engine run up, and “the area assigned for this procedure was the end of the runway in a section off the taxi way cut back into heavy vegetation.” He stated that this area was frequented by both Thai and U.S. perimeter security personnel who constantly had to be warned of the danger of the jet wash. He stated that to reach the flight line he “had to cross a check point and show proper identification—the checkpoint was in a perimeter spray zone.” The Veteran stated that for recreation he went to either the NCO Club or the Airmen’s Club, both of which were in or near the 500-meter herbicide drift zone. He stated that routine drills had them leaving their hooches “and entering sand bag revetments during simulated attacks, another area in the spray zone.” Attached to his January 2012 statement, the Veteran presented a May 2011 all-purpose memorandum pertaining to Korat RTAFB 1967–1972, which was updated August 2011. It included general descriptions of service member assignments, maps of the base, and photographs of various locations on the base to which he referred in his statement. In October 2012, VA obtained a DPRIS (Defense Personnel Records Information Retrieval System) report based upon a review of historical data submitted by the 388th Tactical Fighter Wing, the higher headquarters for the 469th Tactical Fighter Squadron, for the period October through December 1966 at Korat RTAFB. It was stated that the data did not show any personnel assigned to the 469th being exposed to Agent Orange or that their duty assignments required them to be on or near the base perimeter. It was noted that the data did not provide maps or report on the unit’s location in proximity to the base perimeter. It was stated that the data did not report the spraying, testing, or storage at Korat RTAFB of Agent Orange during October to November 1966. In advance of a buddy statement, the Veteran stated in a February 2015 letter that a friend had been hospitalized for two months at the 31st field hospital at Camp Friendship, and during those two months, he visited to help his friend recover. He stated: “I walked the perimeters of both bases to accomplish this act of friendship!!” The Veteran presented a February 2015 letter from retired SMSGT W.P.D. in which he stated that they became good friends when they were stationed together prior to deployment to Thailand. He stated that in the spring of 1967 he was hospitalized for two months at the Army hospital at Camp Friendship. He stated that the Veteran visited him numerous times and that they spent many days walking the perimeter of Camp Friendship during his recuperation. He stated that as he was able, they started jogging and eventually running around the perimeter of Camp Friendship. In a May 2015 letter, the Veteran’s attorney drew the Board’s attention to the website location for the declassified 1973 Air Force report, Project CHECO (Contemporary Historical Examination of Current Operations) Southeast Asia Report Base Defense in Thailand, which described Camp Friendship and its location thus: “an RTA fort and training center for several hundred TSGs, bordered Korat on another section of perimeter.” In April 2017, the Veteran’s attorney presented a copy of the Department of the Army’s Field Manual: Tactical Employment of Herbicides dated December 1971. He argued that because the Army stated that a 500-meter distance should be maintained between an area sprayed on the ground and desirable vegetation, the base perimeter for herbicide exposure purposes should be considered to be that area within 500 meters inward of the perimeter boundary. The Board finds the lay evidence competent, credible, and highly probative of the issue of whether the Veteran spent appreciable time in the perimeter area of Korat RTAFB and Camp Friendship. See 38 C.F.R. § 3.159(a)(2); Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Curry v. Brown, 7 Vet. App. 59, 68 (1994); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (explaining distinctions among competence, credibility, and weight of evidence); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating, “Although interest may affect the credibility of testimony, it does not affect competency to testify.”). The lay evidence pertains to things of which the proponents have personal knowledge, it is internally and externally consistent, and it is supported by other competent, credible evidence of record. The lay evidence places the Veteran in the perimeter areas of the Korat RTAFB and Camp Friendship for recreation, living, and during regular transit to work, between the base and camp, and to the city of Korat. During the Veteran’s entire tour, he passed through a security checkpoint located in the perimeter spray zone to get to the flight line. The Veteran’s service treatment records show that he swam in the swimming pool, and he stated that he played softball, which placed him in the 500-meter drift zone where the physical training and recreation area are shown on Map 2. He and a friend used the perimeter of Camp Friendship as an exercise area for walking, jogging, and running for a two-month period. While the Veteran stated that he performed engine run ups on a section of runway cut back into heavy vegetation, he did not state that this duty required him to be outside the airplane. The Board notes that the DPRIS report covers only a portion of the time during which the Veteran was stationed at Korat RTAFB, October to November 1966. The report also stated that information as to the unit’s location in proximity to the base perimeter was not included in the historical data. The Board notes that data as to living quarters was not provided. The Board finds that the record does not contain any affirmative evidence to rebut that the Veteran spent appreciable time in the perimeter areas of Korat RTAFB and Camp Friendship during the Vietnam War Era. Accordingly, the second Holton element, in-service incurrence or aggravation of a disease or injury, is met presumptively. The Veteran’s medical records show that when he was diagnosed with diabetes in June 2012, it was noted that it was “possibly precipitated by steroid use.” Because this notation was made in the isolated clinical context of a hospitalization for acute congestive heart failure and was not made in the context of a broader discussion of the Veteran’s entire history, including exposure to herbicide agents while in service, the Board does not find this notation to be persuasive affirmative evidence establishing an intercurrent cause of the Veteran’s diabetes. See 38 C.F.R. § 3.307(b), (d); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300–04 (2008); Prejean v. West, 13 Vet. App. 444, 448–49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Lacking affirmative medical evidence establishing that the Veteran’s claimed disabilities were the result of intercurrent causes, the Board finds that the third Holton element, medical nexus, is met. Based upon a careful review of the evidence of record, the Board finds that the evidence shows that the Veteran was physically present on a regular basis in the perimeter areas of Korat RTAFB and Camp Friendship during the Vietnam War Era such that he is presumed to have been exposed to herbicide agents and his current disabilities are not the result of intercurrent causes. Accordingly, service connection for prostate cancer, ischemic heart disease, and diabetes mellitus type II, as due to exposure to herbicide agents, is warranted. 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney